37 o TEE POPULAR SCIENCE MONTHLY 



THE STEUGGLE FOE EQUALITY IN THE UNITED STATES. 



Br Pbofbssok CHARLES F. EMERICK 



SMITH COLLEGE, NORTHAMPTON, MASS. 



The Courts and Property 



THE constitutional safeguards which surround private property in 

 the United States are exceptionally strong. Between confiscation 

 and the multitude stand the state and the federal courts. In Cutting v. 

 Goddard, decided in 1901, the Supreme Court held that a return of 

 10.9 per cent, on the investment is not unreasonably high and that a 

 return of 5.3 per cent, is unreasonably low. 1 In decreeing the dissolu- 

 tion of the Standard Oil and the American Tobacco Companies, the 

 same tribunal left the defendant companies in possession of everything 

 which they had succeeded in amassing by unlawful methods. Nowhere 

 in either of these decisions is there any hint that restitution ought to be 

 made. On the contrary, every precaution necessary to conserve the 

 property which monopoly control had garnered together was scrupu- 

 lously observed. In the course of the Standard Oil decision, the Chief- 

 Justice remarked " that one of the fundamental purposes of the statute 

 (the Anti-trust Act) is to protect, not to destroy, rights of property." 2 

 No penalty was inflicted other than dissolution and the prohibition of 

 acts violative of the statute. So far as constitutional guaranties are 

 concerned, the most strenuous advocate of property rights could scarcely 

 ask for anything more. 



I 



Nevertheless, the extent to which the Supreme Court conserves the 

 rights of property is easily exaggerated. The Dred Scott decision did 

 not prevent the overthrow of slavery, and moreover without compensa- 

 tion. On the contrary, it hastened its downfall and proved to be the 

 one thing from which the slave power might well have prayed to be 

 delivered. Much comfort was extracted by an influential portion of the 

 property-owning class from the income tax decision in 1895, but the 

 cost of what was gained from that decision has seldom figured properly 

 in the account. Probably no decision of the Supreme Court since the 

 Civil War has excited so much dissatisfaction or fallen so flat. In the 

 opinion of many the court as now constituted would find a way of up- 

 holding a similar measure even though the constitution had not been 

 amended. To save the face of the court was the strongest argument 



i William Z. Kipley, ' ' Eailway Problems, ' ' p. 578. 



2 United States Supreme Court Eeports, Vol. 55, Law. Ed., October, 1910, 

 p. 652. 



